Based on the information from the Ministry of Unification, it appears that conditions at the KIC likely represent the best of North Korea. For example, the KIC Labor Law contains important protections, such as those providing paid leave and holidays (including a guarantee of 150 days of maternity leave), those limiting conditions under which employers can fire workers, and those clarifying employers responsibilities for protecting workers from dangerous or hazardous work conditions. However, Human Rights Watch is concerned that not all those provisions are effectively enforced (the issue of payment of workers wages to the North Korean government rather than to the workers directly, mentioned above, being a prime example).
Human Rights Watch has also identified important workers rights guaranteed in international human rights treaties to which North Korea is a party that are not covered or adequately protected by the KIC Labor Law. In addition, Human Rights Watch has identified practices that also appear to violate labor rights provisions in these treaties. Without adequate legal protections on paper and in practice, KIC workers are vulnerable to rights violations.
Human Rights Watch is concerned by the failure of the KIC Labor Law to protect workers right to freedom of association and to bargain collectively at the KIC.
The KIC Labor Law does not cover these fundamental workers rights. The Ministry of Unification notes, however, that article 13 of the KIC Labor Law states that employers may determine and apply labor rules applicable to all workers through consultation with workers representatives. The labor rules include work hours, rest hours, labor protection standards, labor structure, reward and punishment standards, etc. The Ministry of Unification claims that this provision indirectly recognizes the right to bargain collectively and that workers representatives could, therefore, collectively bargain on behalf of KIC workers under the KIC Labor Law. Permitting South Korean employers to voluntarily consult with North Korean workers representatives does not ensure that workers can exercise their right to bargain collectively under international law, however. Rather, this requires that workers, through representatives of their choosing, must be able to freely engage their employer in the exchange of information, proposals and dialogue to establish terms and conditions of employment, without fear of negative repercussions.
Although the KIC Labor Law is silent on workers right to freedom of association and collective bargaining, North Koreas Foreign Enterprise Law purports to enshrine the right of those employed by foreign enterprises to form trade unions and conclude a contract concerning working conditions. 28 But that law does not protect workers from employer conduct that violates these rights, such as taking punitive measures against workers who attempt to exercise them and interfering in workers efforts to organize, nor does the law require employers to negotiate in good faith with workers representatives upon their request. The law also fails to provide remedies for those workers whose rights are violated, such as reinstatement for those fired for engaging in organizing activity.
An American of Korean descent who has invested in six businesses in North Korea over a decade told Human Rights Watch that trade unions, collective bargaining and strikes were nonexistent at all of the factories he had visited as late as 2004.
It was obvious to me that it didnt even occur to the workers that they could elect their own representatives or form a trade union. If you asked them what a strike is, they probably wont be able to answer the question. Even if they knew what it was, they were not able to act on it. The Workers Party decided everything for them.29
The Ministry of Unification nonetheless told Human Rights Watch that KIC workers could form trade unions if they wanted but that to date there have been no such moves.30 There are no unions at the KIC and no collective agreements.
Instead, according to the Ministry of Unification, the North Korean governmentnot the workers themselvesselects workers representatives, subject to the approval of the South Korean companies operating at the KIC. Each representative, therefore, is a state appointee approved by the employers. One is assigned to each facility at the KIC, and each also generally has managerial responsibilities. There is no time limit on their term of office and they are replaced only when they resign or cause production delays due to lack of managerial ability. Typically, they deal with issues regarding work environment and worker welfare, such as determination of overtime hours and the supply of safety equipment.31
The ICCPR and the ICESCR protect a workers right to freedom of association and collective bargaining. The ICCPR states everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.32 The ICESCR states that parties to the covenant shall ensure the right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests.33
The ILO, to which North Korea is not a party, explains more fully states obligation to respect workers right to freedom of association and collective bargaining. ILO Convention No. 87 Concerning Freedom of Association and Protection of the Right to Organise specifically bans states from interfering with this right and guarantees workers right to freely elect their representatives.34 ILO Convention No. 98 Concerning the Right to Organise and Collective Bargaining further requires states to take measures to encourage and promote collective negotiation.35 The ILO Committee on Freedom of Association has added, The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent.36
The KIC Labor Law falls far short of guaranteeing the fundamental right to freedom of association and the corollary exercise of that right, collective bargaining, as recognized in international law. In addition, the process by which workers representatives at KIC are selected not only violates workers right to elect representatives of their choosing but the ban on state interference in the organization, operation, and functioning of workers organizations.
Human Rights Watch recommends that the KIC Labor Law be amended to explicitly protect workers right to freedom of association, protect against all conduct that violates that right, and introduce a process whereby workers representatives are freely elected by workers through a secret ballot election or similar democratic process. Human Rights Watch further recommends that the KIC Labor Law be amended to explicitly provide for workers right to bargain collectively, including by requiring employers to bargain in good faith upon the request of workers representatives and prohibiting employer retaliation against workers for exercising that right. The revised law should provide meaningful sanctions on employers for violating these rights, and should be effectively enforced. Employees should be fully informed of the changes and their rights, and provided with training and support to ensure that they are aware of how to exercise those rights. Their rights should be publicly posted in the workplace.
According to testimonies of North Korean refugees living in South Korea, sex discrimination and sexual violence against women is widespread in North Korea. Women become victims of sexual harassment and sexual violence at workplaces, in the military and even when they fail to pay fines for traveling without state permission. Many victims of sexual harassment and sexual violence reportedly choose not to report the violations to the authorities due to shame and fear of retribution. In North Korea, women make up about 50 percent of the work force, but in white-collar jobs, including government positions, 65 percent of workers are men. Women are represented in far higher proportions than men in manual labor and farming.37
North Korean laws state that all people in North Korea enjoy equal rights in all spheres of state and public activity.38 Nonetheless, the laws do not explicitly ban employment and workplace sex discrimination, including sexual harassment. The KIC Labor Law also does not address sex discrimination or sexual harassment. The Ministry of Unification did not respond to questions on sex discrimination and sexual harassment from Human Rights Watch, except to report that there is no pregnancy-based discrimination, that KIC workers are not required to submit to pregnancy tests before hiring, and that companies take measures so that pregnant employees are not assigned to dangerous or hazardous jobs and offer 150 days of maternity leave, including 60 days of paid leave.39
Human Rights Watch has generally found, however, that without legislation explicitly clarifying that sexual harassment and pregnancy-based discrimination are prohibited forms of discrimination, employers often engage in such conduct with impunity. In such cases, women workers who suffer these violations and want to seek justice cannot cite explicit labor law provisions banning these practices. Instead, they must make the argument that the conduct runs afoul of the laws general ban on discrimination, often an insurmountable obstacle.40
Article 11 of the CEDAW, to which North Korea is a party, provides, States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights. 41 In addition, the CEDAW Committee, charged with interpreting the protections of the convention, has found that [e]quality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace and that, therefore, states are obliged under the CEDAW to take steps to provide [e]ffective legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including . . . sexual harassment in the workplace. 42
Human Rights Watch recommends that the KIC Labor Law be amended to explicitly prohibit workplace and employment sex discrimination, including pregnancy-based discrimination and sexual harassment. The revised law should provide meaningful sanctions on employers if these provisions are violated, and should be effectively enforced. Employees should be fully informed of the changes and what the prohibition on discrimination means, and female employees in particular should be provided with training and support to ensure that they are aware of how to seek redress if they are victims of sex discrimination or sexual harassment.
The KIC Labor Law does not explicitly ban dangerous or hazardous work for those under 18. North Koreas Labor Law establishes 16 as the minimum age for employment, 43 but it does not ban harmful labor for children under 18. The Ministry of Unification told Human Rights Watch that North Korea is in charge of providing labor at the KIC and that the selection process follows the North Korean Labor Law and is governed by the laws minimum age provisions. The ministry also said that at present there is no dangerous or hazardous work at the KIC. As discussed above, however, the KIC Labor Law provides for additional paid vacation days for those in dangerous or hazardous occupations, suggesting that even if no such occupations currently exist at KIC, they may in the future.
The CRC, to which North Korea is a party, requires states to recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the childs education, or to be harmful to the childs health or physical, mental, spiritual, moral or social development. To these ends, the convention obligates states to establish a minimum age of employment and appropriate regulation of the hours and conditions of employment.44
Human Rights Watch recommends that the KIC Labor Law be amended to incorporate the North Korean Labor Laws minimum age provision and to ban the assignment of children under the age of 18 to dangerous or hazardous jobs. The revised law should provide meaningful sanctions on employers if these provisions are violated, and should be effectively enforced.
28 North Koreas second periodic report under the ICCPR submitted to the Human Rights Committee in May 2000 stated: [T]he employees of private enterprise i.e. foreign enterprise form their own trade union under Article 21 of the Foreign Enterprise Law to protect their rights and interests in accordance with the labor law and regulations, conclude a contract concerning working conditions with the foreign enterprise and make activities to implement it. In the same report, North Korea explained limitations to the right: If a public organization or a trade union seriously endangers the State security or healthy public order, the organization and activity is forbidden. Second Periodic Report of the Democratic Peoples Republic of Korea on its implementation of the International Covenant on Civil and Political Rights, CCPR/C/PRK/2000/2, May 4, 2000. Article 21 of North Koreas Foreign Enterprise Law states: Employees working for foreign enterprise can form trade unions. Trade unions protect the rights and interests of the employees under the republics labor law and conclude a contract concerning working conditions with [a] foreign enterprise and supervise their implementation. Foreign enterprises must guarantee conditions for trade union activities. Chongko Choi, North Korean Law, p. 468.
29 Human Rights Watch interview, identity withheld, Seoul, August 29, 2006.
30 Ministry of Unification written response to questions from Human Rights Watch, August 2006.
32 ICCPR, art. 22.
33 ICESCR, art. 8.
34 ILO Convention No. 87 provides, Workers and employers organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. The convention further states,The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. ILO Convention No. 87, art. 3.
35 ILO Convention No. 98 states, Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements. ILO Convention No. 98, art. 4.
36 ILO Committee on Freedom of Association, Digest of Decisions: The right to bargain collectively (Collective bargaining), 1996, para. 728.
37 Korea Institute for National Unification, White Paper on Human Rights in North Korea, pp 138-149.
38 In its second periodic report under the ICCPR submitted to the Human Rights Committee in May 2000, North Korea stated: All the citizens of the DPRK are equal before the law and enjoy, without any discrimination, the right to equal protection of the law. The Constitution and the laws that elaborate it guarantee this right. Article 65 of the Constitution provides: Citizens enjoy equal rights in all spheres of state and public activity. The citizens of the DPRK exercise equal rights in all spheres of state and public activity without discrimination on any ground such as race, color, sex, language, religion, national or social origin, property, birth or other status. Foreigners in the territory of the DPRK are also guaranteed the legal rights and interests without any discrimination, as is stipulated in the article 16 of the Constitution. Second Periodic Report of the Democratic Peoples Republic of Korea on its implementation of the International Covenant on Civil and Political Rights, CCPR/C/PRK/2000/2, May 4, 2000.
39 As of May 2006, 21 North Korean workers have taken maternity leave. See KIC Council of Industry Representatives, Worker Wage and Labor Conditions at Kaesong Industrial Complex, May 2006, p. 24.
40 See, for example, Human Rights Watch, A Job or Your Rights: Continued Sex Discrimination in Mexicos Maquiladora Sector, vol. 10, no. 1(B), December 1998, http://www.hrw.org/reports98/women2/; A Test of Inequality: Discrimination Against Women Living with HIV in the Dominican Republic, vol. 16, no. 4(B), July 2004, http://hrw.org/reports/2004/dr0704/dr0704.pdf#search=%22%22A%20Test%20of%20Inequality%22%22; From the Household to the Factory: Sex Discrimination in the Guatemalan Labor Force (New York: Human Rights Watch, 2002), http://hrw.org/reports/2002/guat/; Tainted Harvest: Child Labor and Obstacles to Organizing on Ecuadors Banana Plantations (New York: Human Rights Watch, 2002), http://www.hrw.org/reports/2002/ecuador/index.htm#TopOfPage; and Help Wanted: Abuses Against Female Migrant Domestic Workers in Indonesia and Malaysia, vol. 16, no. 9(B),July 2004, http://hrw.org/reports/2004/indonesia0704/.
41 Article 11 of CEDAW further states that, in particular, states should protect [t]he right to the same employment opportunities, including the application of the same criteria for selection in matters of employment and [t]he right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work. CEDAW, art. 11.
42 General Recommendation No. 19 of the CEDAW Committee, adopted at its 11th session in 1992. The committee stated, Sexual harassment includes such unwelcome sexually determined behaviour as physical contact and advances, sexually coloured remarks, showing pornography and sexual demand, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruitment or promotion, or when it creates a hostile working environment.
43 North Korea clarified the minimum working age in the country in its second periodic report under the ICCPR submitted to the Human Rights Committee in May 2000. The report stated, Article 15 of the Labor Law stipulates: In the DPRK, the minimum working age is 16. Labor by children under the working age is prohibited by the state. Second Periodic Report of the Democratic Peoples Republic of Korea on its implementation of the International Covenant on Civil and Political Rights, CCPR/C/PRK/2000/2, May 4, 2000.
44 CRC, art. 32.